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STATE OF OREGON, Respondent, v. TIMOTHY STEVEN FACCIO, Appellant.

Affirmed.

SCHWAB, C. J.

SCHWAB, C. J.

Defendant's two assignments of error present a single question: Did the evidence present a prima facie case against him on the charge of conspiracy to commit criminal activity in drugs? We so hold.

There was testimony that Judith Roth — alleged in the indictment to be defendant's co-conspirator — engaged in extended negotiations with an informant to sell a large amount of amphetamine tablets. During these negotiations, Ms. Roth stated that defendant was her source of illegal drugs.

Police officers observed a transaction between Ms. Roth and a customer on January 17, 1975 — alleged in the indictment to be the date of the crime. After leaving the customer at a restaurant, Ms. Roth was followed by officers to defendant's house. She stayed about five minutes. Ms. Roth was then followed by the officers back to the restaurant, where a sale of amphetamine tablets was consummated. Again, the officers followed Ms. Roth to defendant's house where she stayed about 30 minutes.

It was a question for the factfinder whether Ms. Roth's visits were social in nature, as defendant testified, or commercial in nature — the first to quickly pick up drugs and the second to leisurely split the sale proceeds. See, State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974); State v. Brewer, 267 Or. 346, 517 P.2d 264 (1973).

Affirmed.

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STATE v. FACCIO
(Oct 12, 1976)