State v. Nostern

Defendant appeals a judgment of conviction for delivery of methamphetamine (Count 1), ORS 475.890(2), and possession of methamphetamine (Count 2), ORS 475.894.A discussion of the facts would not benefit the bench, the bar, or the public. On appeal, defendant assigns error to the trial courts denial of her motion for judgment of acquittal (MJOA) on Counts 1 and 2, contending that "the state failed to offer any evidence that defendant constructively possessed the methamphetamine--that is, that she had the right to exercise control over it"--because "the vehicle [that defendant was driving] did not belong to [her] and she had only been driving it for a few minutes." The state concedes that, in the totality of the circumstances of this case, "the evidence was insufficient to establish that defendant possessed methamphetamine that police discovered in the center console of a car that she was driving but did not own." As the predicate for that concession, the state cites State v. Casey, 346 Or 54, 62-63, 203 P3d 202 (2009), in which the court reasoned that mere proximity to contraband, "for a brief period of time and, without more, is not sufficient to establish constructive possession."