State v. Allen

548 P.2d 169 (1976)

STATE of Oregon, Respondent, v. Paul Michael ALLEN, Appellant.

Court of Appeals of Oregon.

Argued and Submitted March 16, 1976.

Decided April 5, 1976.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and LEE, JJ.

SCHWAB, Chief Judge.

At the conclusion of a single trial, defendant was separately convicted and sentenced for possession of two different illegal drugs (hashish and LSD) at the same time and place. As we have repeatedly held, defendant's conduct constitutes only one, not two crimes. State v. Gill, 24 Or. App. ___, 547 P.2d 166 (1976); State v. Estlick, 24 Or. App. 117, 544 P.2d 596 (1976); State v. Homer, 22 Or. App. 328, 538 P.2d 945, Sup.Ct. review denied (1975); State v. Morales, 21 Or. App. 827, 537 P.2d 109, former opinion adhered to, 22 Or. App. 470, 539 P.2d 1112, Sup.Ct. review denied (1975); State v. Boyd, 15 Or. App. 650, 517 P.2d 321 (1973), Sup.Ct. review denied (1974); State v. Miller, 14 Or. App. 396, 513 P.2d 508 (1973).

The state notes that the question is one of legislative intent whether the Legislative Assembly in enacting ORS 167.207 intended that a defendant with hashish in one pocket and LSD in the other be guilty of and punished for two counts of criminal activity in drugs. But then the state cites nothing at all germane to its theory about legislative intent. We adhere to our prior interpretation of ORS 167.207.

We have considered the issue raised by defendant on appeal even though it was not raised in the trial court. In a closely related context, State v. Webber, 14 Or. App. 352, 513 P.2d 496 (1973), holds an objection must be made in the trial court to preserve the issue for appeal. The doctrine we here apply is now sufficiently well established that it is appropriate to extend Webber and decline to consider this issue in future cases where there was no objection in the trial court.

Reversed and remanded.