State v. Tacia

“To prove constructive possession of a controlled substance, the state must show that the defendant exercised control over or had the right to control the substance.” State v. Sosa-Vasquez, 158 Or App 445, 448 (1999). “The state must link the defendant’s proximity to the substance with a right to control it, and defendant’s ‘own statements can prove the necessary link.’” State v. Fry, 191 Or App 90, 93 (2003).

Defendant appealed his convictions for unlawful delivery (Count 1), manufacture (Count 2), and possession of methamphetamine (Count 3), arguing that the trial court erred by not acquitting him sua sponte due to insufficient evidence. Defendant claimed the evidence did not support his conviction under ORS § 475.894(1) for constructive possession, nor did it support charges under ORS § 475.886 for packaging methamphetamine.  “To prove constructive possession of a controlled substance, the state must show that the defendant exercised control over or had the right to control the substance.” State v. Sosa-Vasquez, 158 Or App 445, 448 (1999). “The state must link the defendant’s proximity to the substance with a right to control it, and defendant’s ‘own statements can prove the necessary link.’” State v. Fry, 191 Or App 90, 93 (2003). The Court found the evidence sufficient to support the defendant's convictions for possession and manufacture, noting that a rational jury could reasonably find he constructively possessed and participated in the methamphetamine's packaging. The Court reasoned there was plain error in the jury instruction on the delivery charge under ORS § 475.005(8) due to a lack of evidence showing an actual or attempted transfer of the drugs. Reversed and remanded for entry of judgment on Count 1, remanded for resentencing, otherwise affirmed.