State v. Kulick

                                       680

Submitted May 21; conviction on Count 1 reversed, remanded for resentencing,
                  otherwise affirmed September 22, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  GREGORY MICHAEL KULICK,
                      Defendant-Appellant.
                   Yamhill County Circuit Court
                      19CR31633; A172826
                                   

    Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894 (Count 1). He assigns error to the trial court’s denial
of his motion for judgment of acquittal (MJOA) on that count. The state responds
that the court did not err, because a rational trier of fact could infer that defendant constructively possessed the methamphetamine discovered in the car that
defendant was driving at the time he was stopped. Held: Because the evidence
in this case did not establish the necessary link between defendant’s presence in
the car and his right to control the methamphetamine found in the car’s center
console, the trial court erred in denying defendant’s MJOA as to Count 1.
     Conviction on Count 1 reversed; remanded for resentencing; otherwise
affirmed.



    Jennifer K. Chapman, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    TOOKEY, J.
   Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.
    Armstrong, P. J., dissenting.
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        TOOKEY, J.
        Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894
(Count 1), and second-degree failure to appear, ORS 162.195
(Count 2). Defendant does not challenge his conviction on
Count 2. Rather, regarding Count 1, defendant argues that
the evidence was insufficient to prove that he unlawfully
possessed methamphetamine, and, therefore, the trial
court erred in denying his motion for judgment of acquittal
(MJOA) on that count. We agree with defendant; we reverse
defendant’s conviction on Count 1, remand for resentencing,
and otherwise affirm.
         “When reviewing a motion for a judgment of acquittal, we view the evidence in the light most favorable to the
state to determine whether a rational trier of fact, making reasonable inferences, could have found that the state
proved the essential elements of the crime beyond a reasonable doubt.” State v. White, 

, 

,
clarified on recons, 

, 

, rev den,

 (2007). In accordance with that standard, we
state the following facts.
         Police officers stopped defendant for driving a car
with expired tags. Defendant was “polite and cooperative,”
and he explained to the officers that the car belonged to his
girlfriend, who had purchased the car through Facebook
about five to six weeks earlier. Defendant’s girlfriend had
not yet titled, registered, or insured the car.
          After a brief discussion with defendant, the officers
obtained defendant’s consent to search the car. During that
search, one officer found a “straw with a white crystalline
substance inside” in the car’s center console. The center
console was “a storage compartment with a lid” and “fold
up little cubby things.” Neither officer recalled where in the
center console they found the straw.
         The officer asked defendant if he knew what the
straw was. Defendant responded that he knew it was a
“tooter”—a straw used for “pouring” methamphetamine
“into your pipe”—because “that’s what him and his girlfriend
use” when they would occasionally use methamphetamine
682                                           State v. Kulick

at home on weekends “when the kids were away.” Defendant
told the officers that “he didn’t know [the tooter] was in the
vehicle,” that he would not have consented to the search had
he known it was there, and that the tooter “was not his, but
that his girlfriend has kids, so he would take responsibility
for it.”
         Defendant was subsequently charged with, among
other offenses, unlawful possession of methamphetamine,
ORS 475.894 (Count 1). At defendant’s bench trial, the
state’s theory was that defendant constructively possessed
the methamphetamine tooter found in the center console of
his girlfriend’s car. After the state rested, defendant moved
for a judgment of acquittal on Count 1, arguing that the
state had not met its evidentiary burden with respect to its
constructive possession theory. The trial court denied defendant’s MJOA and ultimately found defendant guilty.
        On appeal, defendant argues that the trial court
erred in denying his MJOA on Count 1, because “the record
shows only mere proximity to the drugs, [and] it does not
permit an inference that defendant constructively possessed them.” In response, the state argues that the trial
court ruled correctly, because “a rational trier of fact could
infer that defendant had constructive possession of the
methamphetamine.”
         “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. Evans, 

, 

 (1999). “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.” 

 However, a defendant’s
“mere presence in the proximity of a controlled substance is
not a sufficient basis from which to draw an inference of constructive possession.” State v. Fry, 

, 

 (2003). And an inference of constructive possession “is
reasonable only if other evidence establishes a link between
the defendant’s presence where the drugs are found and his
right to control those drugs.” 

         Here, we are presented with a close case. But, having reviewed the record and examined the relevant case law,
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 (2021)                            683

we conclude that the evidence in this case—viewed in the
light most favorable to the state—does not establish the necessary link between defendant’s presence in his girlfriend’s
car and his right to control the methamphetamine tooter
found in the center console.
         In reaching that conclusion, we are cognizant that
“each case presenting a question of evidentiary sufficiency
must necessarily turn on its own record.” State v. Borden,

, 

 (2020). But we note that
the facts of this case are similar to the facts in Fry, 

 (evidence was insufficient to prove the defendant’s constructive possession of methamphetamine syringe
discovered in stopped car where the defendant was in the
driver’s seat; the methamphetamine syringe was discovered under the front passenger seat; the defendant did not
own the car; there was no evidence that the defendant had
recently used or was under the influence of methamphetamine; the defendant made no admissions as to drug use
in the car; and there were no characteristics of the methamphetamine syringe suggesting that the defendant had
used, or had the right to use, that syringe), and the facts
in Borden, 

 (evidence was insufficient
to prove the defendant’s constructive possession of methamphetamine where the defendant did not own the car; there
was no evidence that the defendant regularly rode or spent
time in the car; the methamphetamine was discovered “in
the middle underneath” the passenger seat in which the
defendant was seated—a “location that would not be visible”
to the defendant; there was no evidence that the defendant
herself placed the methamphetamine under the seat; there
was no evidence to support inference that the defendant had
been told about the methamphetamine under her seat; and
there was no evidence that the defendant used methamphetamine while in the car or recently).
         Similarly, in this case, defendant did not own the
car that he was driving when the stop occurred. There was
also no evidence that defendant regularly drove, rode in, or
accessed the car; inferring such a fact from his mere possession of his girlfriend’s car on this single occasion requires
too great an inferential leap. See State v. Bivins, 

, 

 (2004) (Evidence is insufficient to
684                                           State v. Kulick

support an inference when it “requires too great an inferential leap—that is, when the logic is too strained” or when
it “requires the stacking of inferences to the point of speculation.” (Citation and internal quotation marks omitted.)).
In addition, the tooter was discovered inside the center
console—a place obscured from defendant’s sight by a lid.
There was no evidence that defendant himself had placed
the tooter in the car. And there was also no evidence that
defendant had used, or was under the influence of, methamphetamine while he was in the car. Nor was there evidence
linking defendant’s past methamphetamine use with the
tooter’s presence in his girlfriend’s car.
          As for the remaining facts established by the
state—i.e., defendant’s proximity to the tooter and his statement to the officer that he knew what a tooter was based
on his past methamphetamine use—those facts do not support an inference beyond a reasonable doubt that defendant knowingly exercised control over, or had the right to
control, the tooter. See State v. Bell, 

,

 (2008) (An inferred fact “must be one that a
rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts.”). Such an inference is likewise unsupported by defendant’s statement
that the tooter “was not his, but that his girlfriend has
kids, so he would take responsibility for it.” That is because
defendant’s offer to assume criminal responsibility for the
tooter after it was discovered—even viewed in the light
most favorable to the state—does not support an inference
beyond a reasonable doubt that defendant therefore had
control over the tooter, much less that defendant had even
known the tooter was in the car, prior to its discovery by the
officers.
         In short, the evidence in this case—as in Fry and
Borden—is insufficient to support a finding beyond a reasonable doubt that defendant constructively possessed the
methamphetamine tooter discovered in the center console of
his girlfriend’s car. Therefore, we reverse the conviction for
possession of methamphetamine.
        Conviction on Count 1 reversed; remanded for
resentencing; otherwise affirmed.
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         ARMSTRONG, P. J., dissenting.
         I disagree with the majority’s conclusion that the
evidence presented by the state was insufficient to allow the
trial court to find that defendant constructively possessed
methamphetamine. I therefore dissent from the majority’s
conclusion that the trial court erred in denying defendant’s
motion for a judgment of acquittal.
          The facts are largely undisputed. Police officers
stopped defendant for a traffic violation. During their consent search of the car, officers opened the console next to
the driver’s seat and found a “tooter”—a plastic straw with
a burnt end, commonly used with methamphetamine. The
tooter contained a white crystalline substance that later
tested positive for methamphetamine. Defendant denied
owning the tooter or knowing that it was there but told the
officers that he knew the tooter would contain methamphetamine, because that’s what he and his girlfriend use when
they regularly smoke methamphetamine. He also told the
officers that he would “take responsibility” for it. After denying defendant’s motion for a judgment of acquittal, the trial
court convicted defendant of possession of methamphetamine on the theory that the contraband was in his constructive possession.
         In our review of the trial court’s denial of defendant’s
motion for judgment of acquittal, we determine whether,
viewing the evidence in the light most favorable to the state,
a rational trier of fact could have found the elements of the
crime proved beyond a reasonable doubt. State v. Casey, 

, 

 (2009); see State v. Hopkins, 

, 

 (2020), rev den, 

 (2021)
(We will reverse a trial court’s denial of a motion for judgment of acquittal “only where no rational trier of fact could
find all of the elements of the crime beyond a reasonable
doubt.”). We resolve any conflicts in the evidence in favor of
the state, giving the state the benefit of all reasonable inferences that properly may be drawn and accepting all reasonable credibility choices. State v. Cunningham, 

,

 (1994), cert den, 

 (1995).
        To prove constructive possession of contraband, the
state was required to present evidence from which the trial
686                                            State v. Kulick

court could infer that the defendant knowingly exercised
control over, or had the right to control, the contraband.
State v. Stradley, 

, 

 (2013).
Evidence that contraband was in a place that the defendant
occupied is sufficient to support an inference that the defendant had a right to control it. State v. Evans, 

, 

 (1999). When contraband is found in
a vehicle that the defendant occupies, that inference is reasonable if “some facts” link the defendant’s presence in the
vehicle to his right to control the drugs. State v. Sanchez-Anderson, 

, 

 (2019) (“[ ]here
the state seeks to prove that a person in a vehicle possessed
drugs found in that vehicle, an inference of constructive possession is reasonable only if some facts link the defendant’s
presence in the vehicle where the drugs were observed to
the defendant’s right to control those drugs.” (Quoting State
v. Keller, 

, 

 (2016).); State
v. Miller, 

, 

 (1998), rev den,

 (1999).
          Viewing the evidence and all reasonable inferences
in the light most favorable to the state, I would conclude
that there were “some facts” from which the trial court could
infer that defendant had the right to control the methamphetamine that was in the console of the car he was driving.
As the driver of the car, defendant had actual physical control of the console and its contents. Defendant’s constructive
possession—his right to control the tooter and the methamphetamine it contained—can be inferred from his close
physical proximity and control of the console as the vehicle’s
driver, his admission that he and his girlfriend regularly
smoke methamphetamine, and his decision to “take responsibility.” That evidence permitted the trial court to find that
the state had established the element of constructive possession beyond a reasonable doubt. I would conclude for that
reason that the trial court did not err in denying defendant’s
motion for a judgment of acquittal. I therefore dissent.