State v. Stewart

To prove that a delivery "is for consideration" under ORS 475.900(2)(a), the State is required to offer evidence that a defendant either entered into an agreement to sell or completed a sale of the specified drug. Evidence that a defendant possessed the drug with intent to sell them is insufficient.

Defendant appealed conviction of unlawful delivery of methamphetamine. Defendant assigned error to the court of appeals conclusion that subsection (2) of ORS 475.900 referred to consideration as a current or future act and therefore, evidence that Defendant possessed drugs with the intent to sell them was sufficient to prove that a delivery "is for consideration" under ORS 475.900(2)(a). On appeal, Defendant argued that "consideration" requires evidence of a sale or an agreement to sell. In response, the State's argument focused on the word "for" in the phrase "for consideration" and asserted that it means "with purpose or object of" or "in order to obtain or gain" and permitted the State to prove that a delivery is "for consideration" by offering evidence that Defendant possessed drugs with the purpose of selling them. To prove that a delivery "is for consideration" under ORS 475.900(2)(a), the State is required to offer evidence that a defendant either entered into an agreement to sell or completed a sale of the specified drug. Evidence that a defendant possessed the drug with intent to sell them is insufficient. The Supreme Court held that the evidence adduced by the state was not sufficient to establish that Defendant's offense constituted delivery of methamphetamine that is "for consideration" under ORS 475.900(2)(a). Affirmed in part and reversed in part; remanded for resentencing.