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Oregon v. Smith

January 5, 1973

STATE OF OREGON, RESPONDENT,
v.
JAMES EDWARD SMITH, APPELLANT



Appeal from Circuit Court, Multnomah County. Pat Dooley, Judge. No. C-72-05-1701 Cr.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Fort, Judge. Schwab, Chief Judge, and Foley, Judge.

Fort

The defendant was convicted of the crime of criminal activity in drugs (ORS 167.207). He appeals, asserting two assignments of error. One is that the court erred in denying his motion for judgment of acquittal. The basis of the motion was that there was insufficient evidence that he had possession of the heroin that constituted the basis of the charge.

There was evidence from which the jury could have found that the police, armed with a search warrant to search a single family house where defendant lived with two of his children, arrested the defendant as he was driving away from his home. No one else lived or was present at the home. For about an hour prior to the arrest the house had been under constant surveillance by the police. During that time defendant was observed outside the home in the yard. Another man came along the street and climbed the stairs to the porch of the house. The defendant came from the yard to the corner of the house and carried on a short conversation with him. The unidentified man then left

the premises. The defendant shortly thereafter entered the house. A short while later he left the house and drove off in his car. He was at that time stopped by the officers, advised of the search warrant and given the required warnings. No question is raised concerning either the validity of the search warrant or of the warnings. The search took place after dark.

Defendant returned to the house with the officers, opened the door with his own key, and a search of the premises ensued. This revealed in an upstairs room substantial paraphernalia, including plastic balloon material for the packaging and adulterating of drugs, including heroin. Letters addressed to the defendant were found in various rooms in the house.

In the search of the exterior of the premises in the back of the house, a spherical shaped aluminum foil package containing 64 heroin-filled plastic balloons was found about 20 to 25 feet from the back door, apparently similar to the plastic found in the upstairs room. The yard was surrounded by hedges or shrubbery on the west and south property lines varying in height from four to six feet. The aluminum package was found on the ground nearest the corner farthest from the street close to a pile of boards. The grass in the area had been recently mowed. The hedges which extended along both property lines in that corner area were six feet in height. The lot was a corner lot and the house was located on the portion of the lot nearest the street intersection, and occupied much of the lot on the two unhedged sides, though the back part of the lot was visible from the sidewalk. See: State v. Rutherford, 4 Or App 164, 477 P2d 911, Sup Ct review denied (1970).

Defendant contends that as a matter of law he

did not have possession of the heroin and thus that he was entitled to judgment of acquittal. He does not challenge the instructions under which this matter was submitted to the jury, nor does he claim that other persons had joint occupancy ...


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