Submitted October 28, 2014
111235082. Multnomah County Circuit Court. Alicia A. Fuchs, Judge.
Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[270 Or.App. 460] ORTEGA, P. J.
Defendant appeals his convictions for one count of unlawful manufacture of cocaine, ORS 475.876; one count of unlawful delivery of cocaine, ORS 475.880(2); and one count of unlawful possession of cocaine, ORS 475.884. Defendant contends that the trial court erred in denying his motion for a judgment of acquittal based on its determination that a reasonable juror could conclude that he constructively possessed 5.67 grams of cocaine found in his codefendant's vagina. That quantity was added to the other cocaine found, which enhanced his criminal sentencing score on each offense. We agree with the trial court that a rational trier of fact could conclude that defendant jointly possessed the controlled substance found in his codefendant's body. Accordingly, we affirm.
We review the facts in the light most favorable to the state. State v. Evans, 161 Or.App. 86, 89, 983 P.2d 1055 (1999).
While conducting a month-long surveillance of an apartment for suspected illegal drug activity, police observed defendant at the apartment at least six times, in the early morning and late evening hours. Defendant was the account holder for the electricity to the apartment, which was rented by codefendant Dean. On the day when the police were
preparing to execute a warrant to search the apartment and Dean's rental car, they observed defendant drive away from the apartment in the rental car, with Dean and a third person as passengers. The officers pursued the car, and defendant began to drive evasively, until an officer succeeded in pulling defendant over and arresting him. Upon his arrest, defendant yelled at Dean to " keep her mouth shut" and that they had been " set up." A female deputy searched Dean and found 5.67 grams--a " dealer amount" --of cocaine hidden in Dean's vagina. During trial, another deputy testified that, in his experience, males involved in illegal drug sales will sometimes seek to insulate themselves from risk by enlisting females to conduct the actual drug transactions but will be present to receive the proceeds of drug sales.
[270 Or.App. 461] Officers searched Dean's apartment pursuant to the warrant and found 33 bindles of packaged crack cocaine with a total weight of 5.65 grams in the pocket of a pair of men's pants. They also discovered personal papers belonging to defendant in a drawer near the pants. While in police custody, defendant admitted that he kept his clothes at the apartment. Officers also found materials used for manufacturing and packaging crack cocaine during the search.
Defendant was charged with unlawful manufacture, delivery, and possession of more than 10 grams of cocaine. Defendant moved for a judgment of acquittal on all counts, contending that the evidence was insufficient to support his conviction because no reasonable factfinder could conclude that he constructively possessed the 5.67 grams of cocaine found in Dean's vagina. The trial court denied the motion, determining that the state had offered sufficient evidence to support a finding that defendant jointly possessed the cocaine discovered in Dean's ...