State v. Kulick, 497 P.3d 789

Police stopped defendant for expired tags; defendant was driving a car owned by his girlfriend and consented to a search.
Officers found a plastic "tooter" (straw with burnt end) containing a white crystalline substance in the car's center console.
Defendant said he knew what a tooter was from past methamphetamine use with his girlfriend, denied ownership of the tooter, said he did not know it was in the vehicle, but would "take responsibility" for it.
Defendant was charged with unlawful possession of methamphetamine (constructive possession theory) and convicted after the trial court denied his motion for judgment of acquittal (MJOA).
On appeal the majority reversed the Count 1 conviction, holding the evidence failed to establish the necessary link between defendant’s presence and his right to control the tooter; the matter was remanded for resentencing.
A concurring/dissenting opinion argued the driver’s control of the vehicle, his admissions about use, and his offer to take responsibility provided “some facts” supporting constructive possession.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to prove defendant constructively possessed methamphetamine found in the car's center console	A rational trier could infer constructive possession from defendant driving the car, his knowledge of tooters from his drug use, proximity to the console, and his offer to take responsibility	Only proximity and admissions about general drug use; no evidence he owned, regularly used, placed, or saw the tooter; lid obscured item; single occasion—insufficient link to right to control	Reversed conviction on Count 1: evidence insufficient to prove constructive possession; remanded for resentencing; remainder affirmed

State v. Fry, 191 Or App 90 (2003) (mere presence near contraband insufficient; must link presence to right to control)
State v. Borden, 307 Or App 526 (2020) (insufficient where defendant didn't own car, item hidden under seat, no evidence defendant placed or knew of drug)
State v. Evans, 161 Or App 86 (1999) (contraband in quarters owned or occupied by defendant can support inference of right to control)
State v. Bivins, 191 Or App 460 (2004) (insufficiency where inference would require too great an inferential leap or stacking of inferences)
State v. Bell, 220 Or App 266 (2008) (an inferred fact must reasonably follow beyond a reasonable doubt from underlying facts)
State v. Sanchez-Anderson, 300 Or App 767 (2020) (when contraband is in a vehicle, there must be some facts linking presence to right to control)
State v. Keller, 280 Or App 249 (2016) (same—requirement of facts linking presence to right to control in vehicle cases)
State v. Casey, 346 Or 54 (2009) (standard of review for MJOA—view evidence in light most favorable to state)