State v. Gonzalez

188 Or. App. 430 · Court of Appeals of Oregon · Jun 26, 2003

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STATE OF OREGON, Respondent, v. ROBERT JOE GONZALEZ, AKA Bobby Joe Gonzalez, Appellant

*431 PER CURIAM After a trial to the court, defendant was convicted of supplying contraband. ORS 162.185. Defendant appeals, arguing that the trial court erred by concluding that he voluntarily introduced contraband into the Umatilla County Jail when, while in possession of methamphetamine, police took him there after arresting him. Defendant is correct that his mere possession of drugs when he was taken by police to a correctional facility is not legally sufficient to prove that he voluntarily introduced contraband into that facility. See State v. Tippetts, 180 Or App 350, 43 P3d 455 (2002). That is so even if, as the state argues, defendant’s arrest and the discovery of the drugs were “readily foreseeable consequences” of his prearrest conduct. State v. Delaney, 187 Or App 717, 718, 71 P3d 93 (2003). The only remaining question is the proper disposition. Defendant did not move for a judgment of acquittal. Rather, at the end of the state’s case, in his closing argument to the court, defendant argued that the state had not adduced legally sufficient evidence of a voluntary act, which is required to establish criminal culpability. See ORS 161.095(1). That argument is the equivalent of a motion for judgment of acquittal. See State v. Hamilton, 186 Or App 729, 731 n 2, 64 P3d 1215 (2003). 1 Accordingly, we reverse defendant’s conviction for supplying contraband and remand for resentencing. Judgment on Count 2 reversed and remanded for resentencing; otherwise affirmed. Footnotes [1] But see State v. Schodrow, 187 Or App 224, 231-32, 66 P3d 547 (2003) (reversing and remanding for new trial where trial court did not decide material element and there was proof sufficient to withstand a motion for judgment of acquittal); State v. Andrews, 174 Or App 354, 366, 27 P3d 137 (2001) (same).

Parentheticals

concluding that the defendant's closing argument that the state had not adduced legally sufficient evidence to establish the required culpable mental state "is the equivalent of a motion for judgment of acquittal"
State v. Harrison
concluding that the defendant’s closing argument that the state had not adduced legally sufficient evidence to establish the required culpable mental state “is the equivalent of a motion for judgment of acquittal”
State v. Trivitt
explaining that, when a case is tried to the court, challenging the legal sufficiency of the evidence in closing argument is equivalent to moving for a judgment of acquittal
State v. J. M. W.
explaining that, when a case is tried to the court, challenging the legal suf- ficiency of the evidence in closing argument is equivalent to moving for judgment of acquittal
State v. Austin
explaining that, when a case is tried to the court, challenging the legal sufficiency of the evidence in clos- ing argument is equivalent to moving for judgment of acquit- tal
State v. Frost
explaining that, in a bench trial, when a defendant argues during closing argument that the state failed to adduce sufficient evidence for conviction, that argument is “the equivalent of a motion for judgment of acquittal”
State v. Shipe
explaining that, in a bench trial, when a defendant argues during closing argument that the state failed to adduce sufficient evidence for conviction, that argument is “the equivalent of a motion for judgment of acquittal”
State v. McColligan
reversing the defendant’s conviction where its basis was legally infirm while acknowledging cases reversing and remanding for a new trial “where [the] trial court did not decide [a] material element and there was proof sufficient to withstand a motion for judgment of acquittal”
State v. Barboe
in a bench trial, arguing in closing that the evidence is legally insufficient is equivalent to moving for judg- ment of acquittal
State v. McLaughlin
in a bench trial, chal- lenging the legal sufficiency of the evidence in closing argu- ment is equivalent to moving for judgment of acquittal
State v. Ferreira
mere possession of drugs when a defendant was taken by police to a correctional facility is not legally sufficient to prove that he voluntarily introduced contraband into that facility
State v. Eaton
in a bench trial, when a defendant argues during closing argument that the state failed to adduce sufficient evidence for conviction, that argument is “the equivalent of a motion for judgment of acquittal”
State v. Habibullah