State v. Kulick

To prove constructive possession, the state must prove that a defendant knowingly exercised control over, or had the right to control, the contraband.” State v. Evans, 161 Or App 86, 89, 983 P2d 1055 (1999). However, a defendant’s “mere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive possession.” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003).

Defendant was charged with unlawful possession of methamphetamine and moved for a judgment of acquittal at his bench trial, arguing that the State had not met its evidentiary burden with respect to its constructive possession theory. The trial court denied defendant’s motion. On appeal, Defendant assigned error to the trial court’s denial, reasoning that “the record shows only mere proximity to the drugs, [and] it does not permit an inference that Defendant constructively possessed them.” The State resonded that the trial court did not err because “a rational trier of fact could infer that defendant had constructive possession of the methamphetamine.” To prove constructive possession, the state must prove that a Defendant knowingly exercised control over, or had the right to control, the contraband.” State v. Evans, 161 Or App 86, 89, 983 P2d 1055 (1999). However, a Defendant’s “mere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive possession.” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003). The Court found that, the evidence was “insufficient to support a finding beyond a reasonable doubt that Defendant constructively possessed the methamphetamine tooter discovered in the center console of his girlfriend’s car.” Therefore, the Court reversed the conviction.