State v. Stradley
Case #: A148475
Haselton, C.J. for the court; Duncan, P.J.; and Armstrong, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A148475.pdf
Criminal Law: More than one person can be found guilty of “frequenting” in violation of ORS 167.222(1) when there are joint owners or occupiers in a home as long as they knowingly possess the controlled substance. Having another person jointly occupying the home without reasonably knowing of the controlled substance is not enough evidence to convict the Defendant of “frequenting” within the meaning of the statute.
Defendant appeals a conviction of frequenting a place where controlled substances are used, delivery of marijuana within 1,000 feet of a school, and delivery of marijuana for consideration, and possession of a controlled substance. At issue on appeal is whether the defendant is entitled to an acquittal on the frequenting charge.
Defendant lived with his girlfriend when Albany police found a controlled substance, illegally owned by Defendant, hidden in the home taped behind a picture. The State argues that Defendant remained in the residence and permitted his girlfriend to keep the contraband in the home. The State argues that the girlfriend constructively possessed the contraband.
The reviewing Court states that the word “keep” means to have physical possession or dominion or control over property. A person can also have constructive control, which requires proof that the person knowingly exercised control over, or had the right to control, the contraband. Constructive possession can also be proven by circumstantial evidence, but it has to be evidence such that a reasonable trier of fact would conclude that the person knew or, because of the location, reasonably could have known about the contraband. Because the contraband was hidden in the house, the Court concludes that it is insufficient evidence to prove constructive possession and, therefore, insufficient evidence to convict Defendant of frequenting. Conviction on frequenting is reversed; convictions on two marijuana charges are reversed and remanded for judgment of one count of delivery of marijuana within 1,000 feet of a school; remanded for resentencing; otherwise affirmed.