State v. Stewart

ORS 475.900(2)(a) applies when a defendant commits unlawful delivery with the purpose of obtaining something of value in return, even if the defendant has not yet received payment or a promise of payment at the time he commits the delivery.

Stewart appealed the trial court’s denial of his motion for judgment of acquittal as to the subcategory factor found in ORS 475.900 (2)(a), which applies when the delivery in question is for consideration. Stewart relied on State v. Villagomez, 281 Or App 29 (2016), which found that paragraph (2)(a) does not apply unless the state proves either that Stewart completed a drug transaction or that he received or entered into an agreement to receive some benefit or detriment from another person. The Court found that ORS 475.900(2)(a) requires the State to only prove that Stewart committed unlawful delivery of one of the listed substances, and that the delivery was characterized by a purpose to obtain something of value in return, such as payment or some other benefit. The Court’s finding was consistent with the legislative history, which makes clear that the legislature sought to distinguish between offenders who sell drugs and those who merely give them away. Moreover, there was no indication that the legislature sought to further distinguish those who successfully obtain or arrange for payment from those who attempt to transfer drugs in exchange for payment, but fail to successfully obtain or arrange for that payment. Since ORS 475.900(2)(a) applied to an attempt to deliver one of the described substances, the trial court did not err. Affirmed.