State v. Myers

ROSSMAN, P. J.

Defendant appeals his conviction for frequenting a place where controlled substances are used. ORS 167.122(1). He contends that the trial court erred in denying his motion for a judgment of acquittal. We reverse.

On July 31, 1991, Officers Corson and Moore executed a search warrant at defendant’s residence.¹ During the search, the officers found drug paraphernalia² locked in defendant’s dresser drawer in his bedroom but did not find a controlled substance anywhere on the premises. Moore testified that, based on his four and one-half years with the street crimes unit, the amount of drug paraphernalia found in defendant’s dresser was more than would be used by a single person.

Defendant was charged under ORS 167.222(1) with frequenting a place where controlled substances are used. The complaint, which tracked the statutory language, alleged that:

“The defendant * * * unlawfully and knowingly frequented] and remain[ed] at a place * * * while knowingly permitting persons to use controlled substances in such place[.]”³ (Emphasis supplied.)

Defendant was convicted after a trial to a jury. On appeal, he argues that the trial court erred in denying his motion for a judgment of acquittal because the state failed to prove that a controlled substance was used at his residence. We view the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989).

Here, one of the essential elements that the state had to prove was that a controlled substance was in fact used at defendant’s residence. ORS 167.222(1). The state, however, produced no such evidence. No controlled substance was found; indeed, all that the state established was that there was drug paraphernalia in the residence. Standing alone, that is insufficient to permit a rational fact finder to conclude beyond a reasonable doubt that defendant or anyone else used a controlled substance on defendant’s premises. Accordingly, we hold that the trial court erred in denying defendant’s motion for a judgment of acquittal.

Reversed.

1 Defendant lived with his mother and one of her friends.

2 The officers found 17 syringes, 16 bent or burnt spoons, three bottles of water (allegedly used to clean the paraphernalia), and several lighters, matches and cotton and syringe packs.

3 ORS 167.222(1) provides:

“A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place orto keep or sell them in violation of ORS 475.005 to 475.285,475.295 and 475.940 to 475.995.” (Emphasis supplied.)