S057832, Opinion — State v. Daniels

513
Argued and submitted May 19, at Ashland High School, Ashland, Oregon, decision
of Court of Appeals reversed; judgment of circuit court reversed, and case
remanded to circuit court for further proceedings July 9, 2010
STATE OF OREGON,
Respondent on Review,
v.
DEVIN JACOB DANIELS,
Petitioner on Review.
(CC 200621759; CAA136901; SC 8057832)
234 P3d 976

514 	State v. Daniels
En Banc
On review from the Court of Appeals.*
Bronson D. James, Chief Deputy Public Defender, Office
of Public Defense Services, Salem, argued the cause for peti-
tioner on review. With him on the brief was Peter Gartlan,
Chief Defender.
Gregory A 	Rios, Assistant Attorney General, Salem,
argued the cause for respondent on review. With him on the
brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.
WALTERS,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, 	and the 	case 	is
remanded to the circuit court for further proceedings.
* Appeal from Lane County Circuit Court, Pierre L. Van Rysselberghe, Senior
Judge. 230 Or App 430, 215 P3d 127 (2009).

Cite as 348 Or 513 (2010) 	515
WALTERS,J.
The issue in this criminal case is whether the state
adduced evidence from which a jury could find that defen-
dant was in actual or constructive possession of a small quan-
tity of methamphetamine located in defendant's girlfriend's
bag. The Court of Appeals affirmed defendant's conviction
without issuing a written opinion. State v. Daniels, 230 Or
App 430, 215 P3d 127 (2009). We allowed review and now
reverse.
At trial, the following evidence, viewed in the light
most favorable to the state, see State v. Casey, 346 Or 54, 56,
203 P3d 202 (2009) (stating standard), was presented. On
September 21, 2006, police obtained a warrant to search the
house that defendant shared with a roommate. Defendant's
girlfriend, Perdune, did not live there. The week before the
police obtained the warrant, they had noticed a high volume
of visitors to defendant's house. One officer had observed four
vehicles and five pedestrians within a 20-minute period, sug-
gesting to him that someone at the house was selling illegal
drugs. Using a confidential informant, police made a con-
trolled purchase of narcotics.
On September 21, the police knocked on the front
door 	of defendant's 	house 	and, 	when they received 	no
response, made a forced entry. In a safe in defendant's room-
mate's bedroom, police found a small pistol, a list of transac-
tions, a larger plastic baggie1 containing smaller plastic bag-
gies, and a plastic container holding a substance commonly
used to dilute methamphetamine. In defendant's bedroom,
police found a set of digital scales, small plastic baggies, a
loaded magazine of .223 caliber rounds for an assault rifle
(but no corresponding rifle), and a pink bag. 2 Inside the pink
bag was a small baggie identical to the small plastic baggies
found in the bedrooms of both defendant and his roommate.
1 At trial, the witness referred to this larger plastic item and the smaller plas-
tic items within it as "baggies." To be consistent with that testimony, we also use
the term "baggies."
2 At trial, some of the participants referred to the container as a "pink bag,"
"purse," and "backpack," but the only witness, the police officer, used the term
"bag" or "pink bag." The container was not introduced into evidence. We also will
use the words "bag" or "pink bag."

516 	State v. Daniels
The baggie in the pink bag contained a small quantity of
methamphetamine sufficient for personal use.
Defendant was present during the search, as was
Perdune. 3 Defendant's roommate was not. On questioning,
defendant confessed to having sold methamphetamine from
the residence "about a month ago" and to using methamphet-
amine regularly, smoking it three to four times per week.
Perdune acknowledged ownership of the pink bag.
The state charged defendant with one count of pos-
session of methamphetamine, ORS 475.894, 4 and one count
of distribution of methamphetamine within 1,000 feet of a
school, ORS 4 75.892. At trial, defendant twice moved for a
judgment of acquittal. In one motion, defendant contended
that the state had not proved that defendant's distribution
occurred in proximity to a school. The court granted that
motion, 	reducing the 	distribution 	charge 	to 	the 	lesser-
included charge of delivery of methamphetamine under ORS
4 75.890. In the other motion, defendant contended that the
state had not adduced sufficient evidence to permit a convic-
tion for possession. The trial court denied that motion, and
the jury returned a verdict of guilty on both charges, viz., the
possession 	charge 	and 	the 	delivery 	charge. 	Defendant
appealed the possession conviction, asserting that the trial
court had erred in denying his motion for a judgment of
acquittal. 5 As noted, the Court of Appeals affirmed.
3 Viewing the record in the light most favorable to the state, there was some
evidence that Perdune was present when the search warrant was executed. The
police officer who conducted the search testified that "she claimed the bag as being
hers." In addition, the officer was not certain whether he interviewed defendant
first or last. Because defendant's roommate was not present during the search, it
appears that the officer interviewed someone in addition to defendant and that
that person was present when the search was conducted. A trier of fact reasonably
could infer that Perdune was present and acknowledged ownership of the bag at
the time of the search.
4 ORS 4 75.894(1) provides:
"It is unlawful for any person knowingly or intentionally to possess meth-
amphetamine unless the substance was obtained directly from, or pursuant to,
a valid prescription or order of a practitioner while acting in the course of
professional practice, or except as otherwise authorized by ORS 475.005 to
4 75.285 and 4 75.840 to 475.980."
5 Defendant also sought appellate review of the issue of whether a unanimous
jury verdict was constitutionally required. We decline to consider that issue on
review. See ORAP 9.20(2) (court may limit questions on review).

Cite as 348 Or 	517
As a preliminary matter, it is important to clarify that
defendant's conviction for delivery of methamphetamine did
not reflect a jury finding that defendant had delivered meth-
amphetamine to Perdune on or about September 21, 2006. The
delivery that the jury was instructed to consider, and that
formed the basis for its conviction, occurred 30 days earlier.
In the indictment, the state alleged two separate
counts-first that, on or about September 21, 2006, defen-
dant possessed methamphetamine; and second, that, on or
between August 1 and September 21, 2006, defendant deliv-
ered methamphetamine. During trial, the judge asked the
state's attorney to clarify the facts on which they based the
delivery charge. The court explained that the jury should be
told whether that charge was based on the delivery that
defendant told the officer he had made a month before the
search, a delivery that may have occurred when the inform-
ant bought methamphetamine, or a delivery that may have
occurred on the date of the search. 6 The state apparently
answered that the delivery charge was based on defendant's
statement to the officer because the court instructed the jury
accordingly:
"But that* * *the incident alleged in [the delivery] charge
is not the incident when the search warrant was served, or
it's not the incident, I think Counsel made this clear when
the informant went into the house under the officer's super-
vision with the money, and so forth.
"The incident which is that* * *alleges the basis of this
charge is the one based on the officer's testimony about the
Defendant telling him when [he] last sold methampheta-
mine. That's the incident that you're dealing with on that
charge, and the issue is did the State prove that beyond a
reasonable doubt within the rules of the laws, and [the]
instructions that I'm giving you."
(Ellipses in transcript.)
" In a conference on jury instructions, the trial court told the attorneys that he
needed to clarify the charge for the jury because "my concern is* * * so that we've
got three possible bas[i]s for a charge, three possible dates, I mean they could say
well, it was when the informant went in the house, or they could say, you know,
they could look at [the] date the search warrant was served, or they could look at
the date 30 days before when the Defendant alleges that he sold the substance, so
I want to make sure they know the charge that's before them." (Ellipsis in
transcript.)

The court also instructed the jury that the posses-
sion charge depended solely on whether defendant possessed
methamphetamine on the date that the search warrant was
served-September 21, 2006:
"First charge alleges that the Defendant on or about
September 21, 2006 in Lane County, Oregon did unlawfully
and 	knowingly 	possess 	a 	substance 	containing 	the
Schedule II controlled substance, methamphetamine.
"And the incident that's alleged to be the basis of that
charge, is the incident time when the search warrant is
served, and that's your question. Was the Defendant at that
time, and that was September 21, 2006 is alleged [to have
been] when the offense [occurred], unlawfully possessing
methamphetamine[?]"
Thus, in light of the trial court's instructions, the issue before
this court is whether there was evidence from which the jury
could have found that defendant possessed, on September 21,
2006, 7 the 	methamphetamine 	that 	the 	police 	found 	in
Perdune's bag when they conducted their search.
In ruling on the sufficiency of the evidence of posses-
sion of methamphetamine, the question is whether there was
sufficient evidence in the record from which a reasonable
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. State v. Rader, 348 Or 81,
91, 228 P3d 552 (2010). "In making that determination, a
court must resolve all conflicts of evidence in favor of the
state and give the state the benefit of all reasonable infer-
ences." Id.
The state advances two alternative arguments for
the conclusion that it presented sufficient evidence to support
7 As noted, the indictment alleged that defendant possessed the methamphet-
amine "on or about" September 21, 2006, but the court instructed the jury that it
was required to find that defendant's possession occurred on that specific date. The
state did not object to the instruction, nor does it argue in this court that there was
evidence that defendant possessed the methamphetamine on a date "on or about"
September 21, 2006, other than on that specific date-September 21, 2006. As we
understand the state's argument, it does not dispute that, for the purposes of
resolving defendant's motion for judgment of acquittal, the question is whether
there was evidence from which a reasonable trier of fact could have found that, on
September 21, defendant actually or constructively possessed the methampheta-
mine found in the pink bag. We limit our discussion to that issue.

Cite as 348 Or 513 	519
the jury's verdict of guilty. The state first argues that defen-
dant actually possessed the methamphetamine found in
Perdune's bag. A person has actual possession of property
when the person has physical control over it. See ORS
161.015(9) ("'Possess' means to have physical possession or
otherwise to exercise dominion or control over property.");
State v. Fries, 344 Or 541, 546, 185 P3d 453 (2008) ("As a gen-
eral rule, 'to have physical possession' of property means to
have bodily or physical control of it.").
The state contends that, although defendant was not
in physical control of the methamphetamine when the police
discovered it on September 21, there was evidence that
defendant had had that methamphetamine in his physical
control "just before" the police discovered it. The state points
to defendant's admission that he had sold methamphetamine
previously, the paraphernalia that the police discovered indi-
cating that a high volume methamphetamine sales operation
was ongoing, Perdune's status as defendant's girlfriend, the
fact that the methamphetamine was discovered in her bag,
and the fact that the methamphetamine was inside a small
plastic baggie that was identical to the small plastic baggies
found elsewhere in the house. The state argues that the jury
could have inferred from that evidence that defendant was
the source of the methamphetamine in Perdune's bag and
that he therefore had had the methamphetamine in his phys-
ical possession on the day of the search before either supply-
ing it to Perdune for her use or placing it in her bag to avoid
its discovery by the police.
Although those scenarios are possible, they rely on
speculation rather than reasonable inferences. The evidence
disclosed that defendant had supplied methamphetamine to
others about a month before and that Perdune was in posses-
sion of methamphetamine, but not other facts from which a
reasonable jury could infer that defendant was the source of
that methamphetamine. Defendant had no methampheta-
mine in his own possession and there was no methampheta-
mine anywhere else in the house.
Even if we were to assume that there was evidence
from 	which 	a 	jury could find 	that 	defendant 	supplied
Perdune with the methamphetamine or placed it in her bag,

State v. Daniels
there was not sufficient evidence that defendant did so-and
therefore was in possession of the drugs-on September 21,
2006. To establish actual, as opposed to constructive, posses-
sion, the state had to prove that defendant had physical con-
trol of the methamphetamine on September 21, i.e., that he
possessed the methamphetamine on that day. The state
argues that the amount of methamphetamine in the bag was
small and that the jury could infer from that fact that
Perdune had not had it in her possession for long. If defen-
dant had transferred the methamphetamine to Perdune
before September 21, the state contends, she already would
have consumed it. What the state overlooks, however, is that
the evidence did not disclose the extent or frequency of
Perdune's use. The fact that the methamphetamine was in
Perdune's bag on September 21 was insufficient to permit a
jury to find, beyond a reasonable doubt, that defendant also
had that methamphetamine in his physical possession on
that date.
In the alternative, the state contends that defendant
had constructive possession of the methamphetamine in
Perdune's bag. The concept of constructive possession broad-
ens the scope of the crime of possession beyond physical con-
trol. State v. Casey, 346 Or at 60. In accordance with that
concept, under ORS 161.015(9), "possess" means not only
physical possession, but "otherwise exercis[ingJ dominion or
control over property."
The state contends that the jury could have found
that defendant exercised dominion or control of the meth-
amphetamine on September 21, 2006, because he shared con-
trol of it with Perdune. The state relies on the same circum-
stances outlined above: defendant was a drug dealer and
user; defendant and Perdune were in a romantic relation-
ship; and Perdune's bag was located in defendant's bedroom.
Accordingly, the state contends that "it is likely that the
drugs were available for defendant's use, and that he, there-
fore, constructively possessed them." (Emphasis added.)
We reject the state's argument for two reasons. First,
proximity to property owned by a social guest does not estab-
lish that the host exercises dominion or control over that

Cite as 348 Or 513 	521
property. Second, the facts did not permit a reasonable infer-
ence that Perdune was more than defendant's social guest.
In Casey, the court considered four factual circum-
stances on which the state based an argument of constructive
possession of a gun owned by a social guest, three of which
are relevant here. First, the court considered the fact that the
guest brought a gun, concealed on his person, into the defen-
dant's residence. The court held that no reasonable trier of
fact could find that the defendant exercised dominion or con-
trol over the gun without some evidence that the defendant
knew that the guest was carrying a gun. 346 Or at 60-61.
Second, as the defendant and his guest were leaving the
residence, the guest placed the gun on a counter in the defen-
dant's residence. The fact that the guest did so with defen-
dant's knowledge was also insufficient to establish con-
structive possession. The court stated,
"As a general matter, guests retain dominion and control
over their own property when they visit another person's
home. See Minnesota v. Olson, 495 US 91, 99-100, 110 S Ct
1684, 109 L Ed 2d 85 (1990) ('[H]osts will more likely than
not respect the privacy interests of their guests, who are
entitled to a legitimate expectation of privacy despite the
fact that they have no legal interest in the premises.'). A
guest who hangs his or her hat on the host's hat rack for the
duration of a visit does not, by that act alone, give the host
dominion or control over the guest's hat. Something more is
required to permit an inference that the guest intended to
cede or share control of the guest's property with the host."
Id. at 61. Third, the court concluded that when the defendant
in Casey reentered the residence and was again in proximity
to the gun for a short period of time, his proximity to the gun,
without more, was not sufficient to establish constructive
possession. Id. at 62-63.
Like Casey, the facts in this case do not create an
inference of constructive possession sufficient for a reason-
able jury to conclude beyond a reasonable doubt that defen-
dant had constructive possession of the methamphetamine.
The evidence neither established nor permitted a reasonable
inference that defendant knew that the pink bag was in his
bedroom or that it contained methamphetamine. There was
no evidence that defendant had looked in the bag, that the

522 	State v. Daniels
bag was transparent, or that the methamphetamine was
otherwise discernable. The state contends that a jury could
infer defendant's awareness of the methamphetamine from
the likelihood that he had sold it to Perdune. But, as we have
previously explained, the record does not contain facts that
would justify that inferential leap. Without some evidence
that defendant knew that the methamphetamine was in
Perdune's bag, the evidence, like that in Casey, is insufficient
to permit a reasonable jury to find that defendant construc-
tively possessed it.
Second, as Casey informs us, guests retain dominion
and control over their own property when they visit the home
of another. The evidence did not permit a reasonable jury to
find that Perdune was any more than a social guest at defen-
dant's residence. The evidence did not disclose anything
about the relationship between defendant and Perdune other
than that it was romantic. There was no evidence, for exam-
ple, about whether defendant and Perdune had formed a
partnership in their personal property, or even how long they
had been acquainted. There was no evidence about whether
Perdune had permitted defendant to exercise dominion or
control over her personal property, or even that he had
opened her bag or purse. A romantic relationship and bed-
room access does not give rise to an inference of a partnership
relationship and purse access.
Viewing the evidence in the light most favorable to
the state, we conclude that a rational juror could not have
found beyond a reasonable doubt that defendant possessed,
on September 21, 2006, the methamphetamine that the
police discovered that day. We therefore conclude that the
trial court erred in denying defendant's motion for a judg-
ment of acquittal on that charge.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.