476 P.3d 979
Or. Ct. App.2020Background
- Borden was the front-seat passenger in a red BMW with driver Marsh and back-seat passenger Garcia; an observer saw Marsh inject drugs and called police.
- Officers detained the occupants and had a narcotics dog sniff the car; the dog alerted and officers searched the vehicle.
- Police found a 6.8‑gram bag of methamphetamine "in the middle underneath" the front passenger seat (reachable from front or back), plus drug paraphernalia and a scale in the driver’s floorboard mesh bag and a small vial in that mesh bag.
- Borden’s purse contained unused syringes; Marsh and Garcia had other drug items; Marsh later told officers the drugs were his after conferring with Garcia.
- State charged Borden with unlawful possession and unlawful delivery of methamphetamine; the trial court denied her motion for judgment of acquittal, a jury convicted on both counts, and Borden appealed claiming insufficient evidence.
Issues
| Issue | State's Argument | Borden's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for possession (constructive possession) | Borden sat over the drugs; presence plus amount and syringes supports inference she had control/right to control | Mere presence near drugs is insufficient; no evidence she knew of, controlled, or placed the bag under the seat | Reversed — evidence insufficient to prove constructive possession or right to control the meth |
| Sufficiency of evidence for delivery (accomplice liability) | Amount inconsistent with personal use; her constructive possession makes her liable as accomplice to a Boyd delivery | Delivery theory depends on constructive possession and intent to promote/facilitate; no evidence of knowledge or intent | Reversed — insufficient evidence for accomplice delivery because possession finding failed and no evidence of intent to promote/facilitate |
Key Cases Cited
- State v. Fry, 191 Or App 90 (2003) (constructive possession requires control or right to control; mere proximity is insufficient)
- State v. Koenig, 238 Or App 297 (2010) (standard of review for judgment of acquittal; view evidence in light most favorable to the state)
- State v. Boyd, 92 Or App 51 (1988) (receipt/possession of quantity inconsistent with personal use can support a delivery inference)
- State v. James, 266 Or App 660 (2014) (insufficient to attribute a particular source of contraband where multiple plausible sources exist)