349 P.3d 573
Or. Ct. App.2015Background
- Police conducted month-long surveillance of an apartment suspected as a drug hub; defendant observed there frequently and was the electricity account holder.
- Officers followed defendant driving a rental car with codefendant Dean as a passenger; he drove evasively and was arrested.
- A female deputy searched Dean and found 5.67 grams of cocaine concealed in her vagina; officers later found 5.65 grams packaged in men’s pants at the apartment and drug-manufacturing materials.
- Defendant’s personal papers and clothing were at the apartment; he admitted keeping clothes there.
- Defendant shouted to Dean after arrest to “keep her mouth shut” and said they’d been “set up.”
- Defendant was charged with unlawful manufacture, delivery, and possession of more than 10 grams of cocaine (state added the 5.67 g found on Dean to the other amounts for enhancement); trial court denied a judgment of acquittal and jury convicted on all counts.
Issues
| Issue | State's Argument | Ortega's Argument | Held |
|---|---|---|---|
| Whether evidence supports that defendant constructively possessed the 5.67 g concealed in Dean’s vagina so total exceeds 10 g | Circumstantial evidence shows a joint drug enterprise and defendant had joint right to control the concealed drug | Unique, personal location (vagina) requires proof defendant had right to control the drug before it was hidden; state didn’t prove that | Sufficient evidence of joint constructive possession; denial of judgment of acquittal affirmed |
Key Cases Cited
- State v. Evans, 161 Or. App. 86 (1999) (standard of review: view evidence in light most favorable to prosecution)
- State v. King, 307 Or. 332 (1989) (review of judgment of acquittal—whether rational trier could find elements beyond reasonable doubt)
- State v. Leyva, 229 Or. App. 479 (2009) (constructive possession—control or right to control; circumstantial proof allowed)
- State v. Coria, 39 Or. App. 507 (1979) (defendant may be found in joint constructive possession based on participation in joint drug transport)
- State v. Fry, 191 Or. App. 90 (2003) (mere presence near drugs insufficient; defendant’s statements can supply the necessary link)