State v. Jaggi

                                   641

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Argued and submitted March 28; conviction on Count 4 reversed, remanded for
            resentencing, otherwise affirmed September 8, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 MATTHEW THOMAS JAGGI,
                     Defendant-Appellant.
                 Malheur County Circuit Court
                     18CR31690; A173415

   Erin K. Landis, Judge.
   David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Mark E. Seepe, Jr., Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Patrick M. Ebbett, Assistant Attorney General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   EGAN, J.
   Conviction on Count 4 reversed; remanded for resentencing; otherwise affirmed.
642                                             State v. Jaggi

        EGAN, J.
         Defendant appeals a judgment of conviction for
one count of second-degree murder, ORS 163.115 (Count 1),
one count of conspiracy to commit murder, ORS 161.450(2)(a)
(Count 2), one count of unlawful use of a weapon, ORS
166.220 (Count 3), and one count of unlawful possession
of a destructive device, ORS 166.382 (Count 4). In his only
assignment of error, he argues that the trial court erred
when it denied his motion for judgment of acquittal on the
charge of unlawful possession of a destructive device. We
conclude that the trial court erred. Accordingly, we reverse
defendant’s conviction on Count 4, remand for resentencing,
and otherwise affirm.
         When reviewing a denial of a motion for judgment
of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational trier of
fact could find each element of the charged offense beyond a
reasonable doubt. State v. Stradley, 

, 

 (2013).
         With regard to the unlawful possession of a destructive device charge, the state’s theory was that defendant was
in “constructive possession” of the destructive device. In the
state’s view, evidence of the following supports that theory:
Defendant’s friend got into a dispute with the victim over
a drug deal and enlisted defendant and others to resolve
the dispute by either paying the victim or killing him; after
obtaining a pistol and sawed-off shotgun in preparation to
confront the victim, defendant’s co-conspirators picked up
defendant in a vehicle; during an ensuing confrontation
with the victim, defendant shot and killed the victim; later,
when questioned by the police three days after the murder,
defendant told the police that a bag containing explosives—
which were later identified as modified M-80 firecrackers
belonging to a co-conspirator—were in the vehicle that was
used during the confrontation with the victim.
         On appeal, the state argues that the trial court
did not err in denying defendant’s motion for a judgment of
acquittal because a rational trier of fact could determine that
defendant was in constructive possession of the destructive
device. That is so, the state argues, because defendant was
Nonprecedential Memo Op: 

 (2022)            643

aware of the destructive device and was involved in a “common criminal enterprise” with the owner of the destructive
device.
         For the state to prove constructive possession under
ORS 161.015(9), the defendant must have knowingly exercised control of or had the right to control the contraband.
State v. Wrisley, 

, 

 (1995),
rev dismissed, 

 (1998). The right of control does
not need to be exclusive for the defendant to be criminally
responsible. 

 The state can meet its burden by showing
the explosives were “available” for defendant’s use. State v.
Beeman, 

, 

, rev den, 

 (2018).
         We conclude the evidence in this case is insufficient
to support a finding beyond a reasonable doubt that defendant constructively possessed the destructive device found
in the vehicle. Although defendant became aware of the
destructive device at some point, even viewing the record
in the light most favorable to the state, there is no evidence
that the criminal conspiracy involved use of the modified
M-80 firecrackers or that they were otherwise available for
defendant’s use. Cf. Wrisley, 

 (evidence
was legally sufficient that the defendant was in constructive possession of a shotgun where the defendant was part
of a conspiracy to commit armed robbery with two individuals, all three were in a vehicle, and the two individuals
were, at various times, in physical possession of the shotgun
and “passing it around the backseat”); State v. Marsh, 

, 

, rev den, 

 (1986)
(constructive possession over a firearm was demonstrated
by the defendant’s admission that a firearm in a vehicle was
available for his use). Nor is there evidence from which a
factfinder could infer beyond a reasonable doubt that defendant knew about the modified M-80 firecrackers before, as
opposed to after, he shot the victim. 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”).
        In short, the evidence does not support an inference beyond a reasonable doubt that defendant knowingly
644                                             State v. Jaggi

exercised control over or had the right to control the destructive device as was required for the state to meet its burden
to prove constructive possession. State v. Kulick, 

, 

 (2021). Consequently, the trial court
erred when it denied defendant’s motion for a judgment of
acquittal on Count 4.
        Conviction on Count 4 reversed; remanded for
resentencing; otherwise affirmed.