STATE v. McGINNIS (2001)

Defendant appeals his conviction for delivery of a controlled substance, ORS 475.992, and assigns error to the admission of evidence obtained from the use of a body wire employed without a prior court order.   We affirmed, State v. McGinnis, 151 Or.App. 137, 953 P.2d 432 (1997), and the Supreme Court remanded for reconsideration in light of State v. Fleetwood, 331 Or. 511, 16 P.3d 503 (2000).  331 Or. 698, 21 P.3d 1087 (2001).

On remand, we conclude that the admission of the unlawfully obtained evidence was harmless error.   In particular, at trial, defendant testified and acknowledged that he had, in fact, participated in the transaction recorded by the body wire.   Given defendant's admissions, which established “delivery for consideration,” ¹ the body wire-related evidence was merely cumulative.   Accordingly, we affirm.  State v. Hansen, 304 Or. 169, 180, 743 P.2d 157 (1987).

Affirmed.

FOOTNOTES

1.   In closing argument at trial, defense counsel acknowledged that the state had established “delivery.”   The trial court gave UCrJI 2600(6), defining “consideration” as “money, property, or something of value to the receiver given or promised to be given in return.”   Defendant did not except to that instruction.

 PER CURIAM.