State v. Makin

ORS 163.547 does not require proof of presence of children in a vehicle during a specific sale of controlled substances. Defendants have a waiveable pre-trial right to argue improper venue, which is not waived if defendant filed his opening brief before Mills was decided.

Defendant appealed conviction for various drug charges. At issue on appeal are the convictions under ORS 163.547 (knowingly leaving or allowing a child to stay in a vehicle where controlled substances are being criminally delivered) and Count 2, manufacturing methamphetamine. Defendant argued that violation of ORS 163.547 was not proven because the State did not prove that Defendant’s children were in the car when sales of methamphetamine actually took place. The Court held that it was not necessary under ORS 163.547 to prove actual delivery of controlled substances while children were present. Defendant further argued that the State failed to prove venue for Count 2 because it did not prove that the manufacturing took place in Washington County. The Court explained that, under Mills, which was decided after Defendant filed his opening brief, a defendant has a waiveable pre-trial right to challenge venue. Therefore, the Court remanded on Count 2 only to allow Defendant to assert a pretrial objection to improper venue. Conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.