Oregon Supreme Ct - Sept 15, 2016

by: Sara Werboff • September 18, 2016 • no comments

First-Degree Child Neglect Does Not Include Leaving a Child Where Drugs are Possessed with Intent to Deliver

The Supreme Court analyzes the legislative history of the first-degree child neglect statute, ORS 163.547, providing that a person commits that crime by allowing children to be present in a place where drugs "are being delivered," and concludes that evidence only of possession with intent to deliver is not sufficient to convict. In this case, defendant was stopped for a traffic violation with three children in the car. Defendant admitted to possessing drugs for sale, and police later found them. Defendant was charged with numerous drug offenses, including first-degree child neglect. After determining that the text and context (including the Boyd decision from the Court of Appeals) did not resolve the issue, the court exhaustively examined the legislative history. The court concludes that the legislative history clearly demonstrated an intent to distinguish "deliver" from "possession with intent to distribute." Second, the legislature had evinced an intent to cover possession with intent to deliver under the existing child endangerment statute. Finally, comments made by an attorney working with the senate committee considering the bill, that supported the state's contentions, were not endorsed by any senate member and were "far too thin a reed on which to rest the conclusion that the state asks us to draw from the legislative history." Thus, because the evidence only showed that defendant possessed drugs with an intent to deliver them, he was entitled to an acquittal on that charge.

State v. Makin, 360 Or 238 (2016) (Kistler, J.)