State v. Smelcer

2 Citing cases

  1. State v. Beason

    170 Or. App. 414 (Or. Ct. App. 2000)   Cited 20 times
    In State v. Beason, 170 Or App 414, 429-30, 12 P3d 560 (2000), rev den, 331 Or 692 (2001), we concluded that where the prefatory language of subsection (1) of the murder statute, ORS 163.115, referred to acts that "constitute murder," that fact suggested that each of the following paragraphs merely described separate ways of committing that single offense.

    Although we have not always been explicit on this point, our prior decisions that have relied on Rainey are not to the contrary. See, e.g., State v. Smelcer, 148 Or. App. 225, 939 P.2d 154 (1997) (citing Rainey, court concluded that evidence that defendant was intoxicated provided no basis for jury's inference that defendant was under the influence of alcohol); State v. Lopez-Medina, 143 Or. App. 195, 923 P.2d 1240 (1996) (where no direct evidence existed connecting defendant to drug operation, court concluded, based on Rainey, that the underlying facts connecting defendant to people and residences involved did not support an inference beyond a reasonable doubt that defendant was connected to the drug operation); State v. O'Hara, 136 Or. App. 15, 900 P.2d 536, rev den 332 Or. 362 (1995) (citing Rainey and concluding that the jury could draw reasonable inference from the facts that defendant had been lying in wait, then tried to disable and trap victim in bathroom stall, that he had taken a substantial step toward rape). In any event, the problem at issue in Rainey is distinguishable from the circumstances here.

  2. State v. Stiles

    165 Or. App. 584 (Or. Ct. App. 2000)   Cited 8 times
    Describing "lack of convergence test" as indicator of marijuana intoxication

    Conversely, if the critical statutory language also encompasses "controlled substance-and-alcohol" DUIIs, the court's response was erroneous because it allowed the jury to consider defendant's alleged marijuana use notwithstanding that the accusatory instrument did not allege such use. None of our decisions materially pertains to, much less resolves, the question presented here. See, e.g., State v. Smelcer, 148 Or. App. 225, 230, 939 P.2d 154 (1997) (where accusatory instrument did not allege use of a controlled substance, and there was no evidence that the defendant had consumed alcohol, the defendant could not be convicted on the basis of driving under the influence of controlled substances); Huck, 100 Or. App. at 196 (decided before enactment of ORS 813.010(2): person could be convicted of driving under influence of intoxicants based on consumption of combination of alcohol and Vicodin; state was not required to present evidence that "a controlled substance is capable of impairing a person's mental and physical abilities * * * [That] is a question for the trier of fact.") (emphasis in original). In construing the critical language of ORS 813.010(2), we follow the analysis prescribed in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993).