State v. Sparks
Case # A150323
Date Filed: 11-26-14
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A150323.pdf
After a period of surveillance and after obtaining Defendant Spark’s utility records, Police Officers obtained a warrant to search Spark’s residence for evidence of marijuana distribution. At the time Officers conducted their search, Sparks was at the residence with another person named Kimm and her two children. Officers found marijuana plants, growing equipment, evidence of distribution, and LSD at the residence. At trial, Kimm testified that she lived with Sparks at the residence and that Sparks occasionally baby-sat and took care of the children. She also testified that Sparks had no control over the children and had no say in what they do and how they live their lives. Sparks was ultimately convicted of first-degree child neglect as well as other crimes. Sparks now appeals his convictions. He argues that the trial court erred in denying his Motion to Suppress the utility records. He also appeals his first-degree child neglect conviction, under ORS 163.547(1)(a)(B), arguing that he had no “custody or control” over the children.
The Court of Appeals first concludes that Sparks has no privacy interest in his utility records. The Court of Appeals also concludes that ORS 136.563 authorized the assistant district attorney to issue the subpoena for the utility records. The records, therefore, were properly obtained and admitted into evidence. Finally, an affidavit stating that a residence has substantially increased power usage does sufficiently support a finding of probable cause for a search warrant of that residence. For these reasons, the Court of Appeals concludes that the trial court correctly denied Sparks’ Motion to Suppress.
Turning to the conviction on two counts of first-degree child neglect, Sparks makes two arguments. First, he argues that the trial court erred by incorrectly instructing the jury that “[a] person has control of a child either by virtue of their relationship to the child or by virtue of the person’s ability to control the premises where the child is physically present.” The statute upon which the child neglect conviction is based, ORS 163.547(1)(a), applies only to “person[s] having custody or control of a child under 16 years of age” who engage in certain prohibited conduct. The Court of Appeals notes that there is no dispute that Sparks did not have custody of the children. The Court of Appeals also concludes that evidence of some kind of ability to control a premises may be relevant to establish “control of a child,” but is by itself insufficient to impute as a matter of law. In other words, the fact that Sparks owned his residence and thus had control over it does not necessarily mean he had control over the children who were at his residence. The Court of Appeals concludes that the jury instructions misstated the meaning of ORS 163.547(1)(a) and reverses and remands the convictions for child neglect in the first degree.
Sparks next argues that the trial court erred by denying his motion for judgment of acquittal. Here, the Court of Appeals disagrees with Sparks. The facts show that the children had been residing with Sparks for four years and Sparks cared for the children while Kimm was out of town. Accordingly, the evidence in this case shows that a reasonable fact-finder could conclude that Sparks did have control over the children, and the trial court did not err in denying Sparks’ motion for judgment of acquittal on the child-neglect counts.
Sparks’ last assertion is that the State cannot prove that the LSD found at his residence belonged to him and not Kimm. The Court of Appeals agrees, noting that an individual’s proximity to drugs is not sufficient to prove possession when other individuals are also in proximity to the drugs. The drugs were found in a room shared by Sparks and Kimm, and the State did not present evidence linking the LSD to Sparks. Sparks’ conviction for unlawful possession of LS is therefore reversed.