State v. Martz

795 P.2d 616 (1990)

103 Or.App. 105

STATE of Oregon, Respondent, v. Mattie Ann MARTZ, Appellant.

10-88-04062; CA A61146.

Court of Appeals of Oregon.

Argued and Submitted May 30, 1990.

Decided August 8, 1990.

Henry M. Silberblatt, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Acting Public Defender, Salem.

Michael Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before JOSEPH, C.J., and WARREN and ROSSMAN, JJ.

PER CURIAM.

Defendant appeals her conviction for frequenting a place where controlled substances are used. ORS 167.222. She argues that the trial court lacked authority to enter a judgment of conviction for that crime, because it is not a lesser included offense of unlawful possession of a controlled substance, ORS 475.992, the only offense for which she was indicted. We reverse.

The state concedes that the elements of frequenting are not necessarily included in the statutory definition of possession.[1] It also acknowledges that the indictment did not allege facts establishing the elements of frequenting. It follows that the trial court lacked authority to convict defendant for that offense. See State v. Moroney, 289 Or. 597, 616 P.2d 471 (1980).

The state argues that we should not consider the trial court's error, because defendant failed to preserve it below. However, the error is plain on the face of the record. Accordingly, we reverse the conviction.

Reversed.

[1] Under ORS 167.222(1),

"[a] person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285, 475.295 and 475.940 to 475.995."

The word "permitting" in the statute means

"that one who, (1) having legal authority over persons who use, keep, or sell illegal controlled substances, at the specified place where the defendant frequents or remains, (2) authorizes or consents to such use, possession, or sale." State v. Pyritz, 90 Or. App. 601, 605, 752 P.2d 1310 (1988).

ORS 475.992(4) states, in pertinent part:

"It is unlawful for any person knowingly or intentionally to possess a controlled substance * * *."

The statutory definition of "possess" is "to have physical possession or otherwise to exercise dominion or control over property." ORS 161.015(8).