State v. Shupe

Evidence of a license to possess or dispense marijuana in another state may be excluded under OEC 401 and OEC 403 because the evidence is irrelevant and may be confusing to a determination of a defendant’s violation of Oregon laws regarding possession and distribution of marijuana.

During a traffic stop officers discovered four pounds of marijuana in Defendant’s car. After a bench trial, Defendant was convicted of delivery of marijuana (ORS 475.860) and possession of marijuana (ORS 475.864). Defendant appealed (1) the denial of his motion to suppress the marijuana and other evidence from his car; (2) the granting of the State’s motion in limine to exclude evidence of Defendant’s Washington State license to possess and dispense marijuana; and (3) the denial of Defendant’s motion to merge the guilty verdict for marijuana possession with the guilty verdict for marijuana delivery. The Court found (1) the officer subjectively believed Defendant could have been under the influence of intoxicants based on his repeated crossing over the fog line while driving along a highway and that belief was objectively reasonable based on the facts of the circumstances; (2) denial of Defendant’s motion to suppress evidence of a Washington State license to possess and dispense marijuana was irrelevant (OEC 401) and confusing to the factfinder (OEC 403) because a license that could allow Defendant to avoid prosecution for possession and delivery of marijuana under Washington law does not allow Defendant to avoid prosecution for violation of Oregon law; and (3) because it is possible to commit the crime of delivery of marijuana without having possession of marijuana, the crimes do not merge as a matter of law. The Court held the trial court did not err in any of Defendant’s three assignments of error on appeal. Affirmed.