State v. Evans

• Decision Date: 02 June 1999
• Citation: 161 Or. App. 86,983 P.2d 1055
• Parties: STATE of Oregon, Respondent, v. Sandy L. EVANS and Walter Errol Evans, Appellants.
• Court: Oregon Court of Appeals

983 P.2d 1055

161 Or. App. 86

STATE of Oregon, Respondent, v. Sandy L. EVANS and Walter Errol Evans, Appellants.

(97R1247; 97CR1246; CA A100224 (Control); A100240)

Court of Appeals of Oregon.

Argued and Submitted January 21, 1999.

Decided June 2, 1999.

Robert J. McCrea, Eugene, argued the cause for appellants. With him on the brief was McCrea, P.C.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

LINDER, J.

In a consolidated jury trial, defendants Walter and Sandy Evans each were convicted of one count of unlawful possession of a controlled substance, ORS 475.992, and one count of frequenting a place where controlled substances are used, ORS 167.222. They appeal, challenging the trial court's denial of their motion to suppress evidence seized during execution of a search warrant, contending that the warrant was not supported by probable cause and that the plain view exception to the warrant requirement did not apply. Sandy Evans also challenges the trial court's denial of her motion for judgment of acquittal, contending that the evidence was insufficient to support the verdict. Without further discussion, we reject defendants' arguments regarding the ruling on their motion to suppress evidence. We therefore affirm Walter Evans's convictions. However, we agree that the evidence is insufficient to support Sandy Evans's convictions, and we reverse that judgment.

On March 24, 1997, authorities searched the residence at 4011 Barview Boulevard, Coos Bay, Oregon, pursuant to a search warrant that named Walter Evans. Neither Walter Evans nor Sandy Evans was present when the search took place. During the search, officers seized an empty plastic bag containing white residue that later tested positive for the presence of methamphetamine. The bag was found in a dresser drawer in the master bedroom. One of the searching officers observed "jewelry, earrings, that type of thing" on top of the dresser. He also found clothing in the dresser. As part of their search, the officers looked for items suggesting "domicile and control" of the residence. Despite an extensive search of the premises lasting from approximately 9:30 am to 5:55 pm, the only item seized suggesting that Sandy Evans resided at the location was an empty envelope found in the living room. The envelope was hand-addressed to "Walter and Sandy Evans" at the address of the searched residence and bore a return address from Farmers Insurance.

After the state's case-in-chief, defendant Sandy Evans moved for a judgment of acquittal, arguing that the evidence was insufficient to connect her either with the residence or to the drugs seized in the residence. The trial court denied the motion, stating:

"Well, I'll have to agree it's really pretty skinny. I've never seen one quite this skinny, but I don't know if it's up to the Court to make a judgment on this.

"I'm going to let it go to the jury. I'll deny your motion."

Defendant¹ assigns error to that denial. In testing the evidence for sufficiency, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995); State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). Under ORS 475.992(4), "[i]t is unlawful for any person knowingly or intentionally to possess a controlled substance." Here, the state presented no evidence that defendant actually possessed the methamphetamine found in the dresser drawer. The issue, therefore, is whether there is sufficient evidence to support a finding that defendant constructively possessed the controlled substance. To prove constructive possession, the state must prove that a defendant knowingly exercised control over, or had the right to control, the contraband. State v. Garcia, 120 Or.App. 485, 487-88, 852 P.2d 946 (1993). Evidence that contraband is found in quarters owned or occupied by a defendant can be sufficient to allow the inference that he or she has a right to control that contraband. State v. Bauer, 128 Or.App. 598, 601, 876 P.2d 802 (1994).

The evidence here is meager. The state relies on: (1) the officer's observation of jewelry, earrings, and similar items on top of the dresser in which the methamphetamine was found; (2) the character of the clothing in the dresser where the drugs were found; and (3) the envelope addressed to "Walter and Sandy Evans" at the address searched that was found on the premises. According to the state, because there was no evidence to suggest that anyone other than Walter and Sandy Evans lived at the searched premises, a rational juror could conclude from the envelope and the contents of the dresser that defendant was married to Walter Evans, that she lived with him at that address, that she shared the master bedroom with him, that she shared joint possession and...