Opinion
209902449A, 209902449B; A108528 (Control), A108529 (Cases Consolidated)
Argued and submitted December 21, 2001.
Filed: January 23, 2002
Appeal from Circuit Court, Lane County, Mary Ann Bearden, Judge.
Jennelle Hall, Deputy Public Defender, filed the brief for appellants. With her on the brief was David E. Groom, Public Defender.
Ryan Kahn, Assistant Attorney General, filed the brief for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.
PER CURIAM
Convictions for manufacture of a controlled substance reversed; otherwise affirmed.
Defendants were convicted of manufacture of and conspiracy to manufacture a controlled substance. Defendant Ousley was also convicted of possession of a controlled substance. They appeal only their convictions for manufacture of a controlled substance, ORS 475.992(1)(b), arguing that they were entitled to judgments of acquittal. The state concedes error, and we agree.
The stipulated facts show that defendants purchased and had in their possession items that they believed were destined for use in the manufacture of methamphetamine. However, as the state concedes in its brief, those facts do "not contain evidence showing that defendants could in fact have created methamphetamine with those items. That is, the stipulated facts did not explain the significance of those items to the process by which methamphetamine is made." This case, thus, is unlike State v. Brown, 109 Or. App. 636, 820 P.2d 878 (1991), rev den 313 Or. 210 (1992), where we affirmed a conviction for the manufacturing of a controlled substance because the defendant possessed "precursor chemicals, laboratory equipment, formulas and other materials necessary to produce methamphetamine." Id. at 645.
Convictions for manufacture of a controlled substance reversed; otherwise affirmed.