State v. Burke

No. 891 September 23, 2026 267 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. TIMOTHY MICHAEL BURKE, Defendant-Appellant. Multnomah County Circuit Court CR56528; A185568 Leslie G. Bottomly, Judge. Submitted June 2, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. JACQUOT, J. Conviction on Count 3 reversed; remanded for resentenc- ing and entry of a corrected judgment; otherwise affirmed. Tookey, P. J., concurring in part and dissenting in part. 268 State v. Burke JACQUOT, J. Defendant appeals a judgment of conviction for unlawful possession of cocaine, ORS 475.884 (Count 3) and driving while suspended or revoked, ORS 811.182 (Count 4), entered after a bench trial. The trial court found defen- dant “not guilty” of felon in possession of a firearm, ORS 166.270 (Count 1); unlawful possession of a firearm, ORS 166.250 (Count 2); and identity theft, ORS 165.800 (Count 5) and “dismissed” those counts. Defendant raises four assign- ments of error and argues that the court erred by: (1) deny- ing his motion for a judgment of acquittal (MJOA) on Count 3; (2) imposing 12 years of probation on Count 4; (3) entering judgments of dismissal rather than acquittals on Counts 1, 2, and 5; and (4) providing in the written judgment that the court could impose additional assessments without further notice to defendant and without further court order. As to the first assignment of error, we agree with defendant that the trial court erred in denying the MJOA on Count 3. The state concedes defendant’s second through fourth assignments of error, and we accept those concessions as well taken. We therefore reverse defendant’s conviction for unlawful pos- session of cocaine, remand for resentencing and entry of a corrected judgment, and otherwise affirm. When reviewing the denial of an MJOA, as in the first assignment of error here, “we view the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Hubbell, 371 Or 340, 343, 537 P3d 503 (2023). To the extent that inferences from circumstantial evidence are necessary to prove an element, it is a question of law what reasonable inferences may be made from the evidence. State v. Bivins, 191 Or App 460, 466-67, 83 P3d 379 (2004). Reasonable inferences are allowed, but speculation and guesswork are not. Id. at 467. A police officer stopped defendant while defendant was driving his friend’s car with permission. Defendant admitted that he did not have a valid driver’s license. The officer arrested defendant for driving while suspended. The officer conducted a search of defendant incident to arrest Cite as 353 Or App 267 (2026) 269 and found a scale with powder cocaine residue and $1,260 in cash in defendant’s pants pockets. The officer then placed defendant in the back of his police car and searched the friend’s car. He identified and confiscated a firearm that had been wedged between the driver’s seat and the center con- sole. Evidence at trial included several photographs of the firearm’s location within the car.1 The officer then questioned defendant about the car and the firearm. Defendant said that he had just gotten into the car a few minutes earlier, did not know what was inside, and had not known there was a firearm in it. After additional officers arrived on scene to inspect the firearm, the officer conducted a second, more thorough search of the car. It was only during this subsequent search that the officer found the bag of crack cocaine “shoved in between the [passenger] seat and the center console.”2 The photographs showing the driver’s seat do not suggest that the bag of crack cocaine was visible from the driver’s seat. The record does not include any photographs showing the location of the bag within the car or any photographs taken from the passenger side of the car. The officer removed the clear plastic bag from the car, presented it to defendant, and asked him if he knew what it was. Defendant identified its contents as crack 1 We have added a red box around the firearm in each photograph for the benefit of readers. 2 The officer testified that the bag “was located between the center console of the vehicle and the passenger seat, shoved in between the seat and the center console.” 270 State v. Burke cocaine and said that he knew the car’s owner liked to smoke cocaine. The officer then asked defendant if the crack cocaine in the bag was his. Defendant said that he only used powder cocaine and that it was the car’s owner who smoked crack cocaine. Regarding the unlawful possession of cocaine charge, the state elected to prosecute defendant under a constructive possession theory and argued that circumstan- tial evidence permitted inferences to support the conviction. Defendant argued in his MJOA that there was insufficient evidence to prove defendant knowingly exercised control of the crack cocaine. In its denial of defendant’s MJOA, the trial court reasoned that “the scale and the cash are enough to make the inference that [defendant] was actually in pos- session of that cocaine rock.” The trial court did not explic- itly find that the bag of crack cocaine was in defendant’s line of sight or that defendant had seen the bag prior to when the officer presented it to him. “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, 161 Or App 86, 89, 983 P2d 1055 (1999). “[M]ere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive pos- session[.]” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003). 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 [the defendant’s] right to control those drugs.” Id. We acknowledge this is a close case, but we are aware that “each case presenting a question of evidentiary sufficiency must necessarily turn on its own record[.]” State v. Borden, 307 Or App 526, 532, 476 P3d 979 (2020). Having reviewed the record and considered the relevant law, 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 friend’s car and his right to control the bag of crack cocaine found between the center console and the passenger seat. Cite as 353 Or App 267 (2026) 271 The facts of this case are similar to cases in which we determined the evidence was insufficient to support con- viction under a theory of constructive possession. For exam- ple, in State v. Kulick, 314 Or App 680, 683, 497 P3d 789 (2021), the evidence was insufficient to prove the defendant’s constructive possession of a straw containing methamphet- amine that was discovered in a stopped car, with the defen- dant in the driver’s seat. In that case, the methamphetamine “tooter” straw was inside the center console and therefore obscured from the defendant’s view; the defendant did not own the car; and there was no evidence that the defendant had recently used or was under the influence of metham- phetamine. Id. at 683-84. In Borden, 307 Or App at 531- 32, the evidence was insufficient to prove the defendant’s constructive possession of methamphetamine where the defendant did not own or regularly use the car; the meth- amphetamine was discovered in a location not visible to the defendant, underneath the passenger seat in which the defendant was seated; and there was no evidence that the defendant used methamphetamine recently or while in the car. See also Fry, 191 Or App at 96-97 (concluding that the evidence was insufficient to prove constructive possession of contraband where the defendant did not own the car; the contraband—a syringe—was obscured from the defendant’s view by the passenger seat; there was no evidence that the defendant had recently used or was under the influence of methamphetamine; and there were no characteristics of the contraband suggesting that the defendant had used, or had the right to use, that syringe). Likewise, in State v. Keller, 280 Or App 249, 254- 55, 380 P3d 1144 (2016), heroin residue observed next to a passenger in a car and obscured from the vehicle driver’s vantage point was insufficient to establish probable cause of the driver’s actual or constructive possession of heroin. In that case, an officer found heroin residue “on the seat by the passenger’s right leg.” Id. at 250-51. We noted that, because it was obscured by the passenger’s leg, the heroin was “not in [the] defendant’s line of sight; that is, it would not have been visible from where defendant had been sitting.” Id. at 255. 272 State v. Burke Similarly, in this case, there is nothing in the record to suggest that the bag of crack cocaine was in defen- dant’s line of sight or that defendant took the unlikely step of searching for items that the car’s owner may have stashed away. See Borden, 307 Or App at 531 (the contraband under a seat would not be visible to a passenger “unless the pas- senger in a car that did not belong to her took the unlikely step of looking beneath the seat to see what the car’s owner might have stashed there”). Such a determination is further supported by the trial court’s grant of defendant’s MJOA for unlawful pos- session of a firearm. Indeed, the trial court found that the location of the firearm—between the center console and the driver’s seat—was “not very visible” and that defendant had not seen the firearm. And as previously noted, the trial court made no explicit finding that defendant had seen the bag of crack cocaine prior to the officer revealing it to him. Likewise, on this record, the evidence is insufficient to sup- port an implicit finding that defendant had seen the bag of crack cocaine, which was in what seems to be an even less visible location. This case is distinguishable from State v. Chan, 349 Or App 715, 716, 592 P3d 984 (2026), where we determined the evidence was sufficient to support conviction under a theory of constructive possession of methamphetamine. In Chan, we stated that evidence in the record permitted inferences that were “unavailable in Kulick, Fry, Keller, and Borden.” Id. at 721. In Chan, the officer testified that he believed the defendant to be under the influence of metham- phetamine at the time of the stop due to his profuse sweat- ing. Id. at 722. We stated that “[t]he inference that defendant had very recently used the methamphetamine found within his reach in the car would permit a factfinder to conclude that defendant * * * constructively possessed it.” Id. There is no analogous evidence in the present case. Here, defendant exhibited no signs of recent drug use, let alone use of crack cocaine—in fact, defendant was described by the arresting officer as cooperative and pleasant. Therefore, like Kulick, Fry, Keller, and Borden, no such inferences analogous to the one permitted in Chan may be drawn here. Cite as 353 Or App 267 (2026) 273 Further, in Chan, during a cellphone search, the officer found recent text communications where the defen- dant had said he could acquire drugs for others. Id. at 724. Those pieces of evidence—which suggested a direct connec- tion between the defendant and the contraband—permitted an inference of constructive possession because he would have to possess the methamphetamine in order to distribute it. Id. However, in the present case, there are no photos, text messages, or any other such evidence to suggest defendant was involved in the distribution of crack cocaine or indeed any other drug dealing activities. Although we noted that the methamphetamine in Chan was “found within his reach,” it was not the defen- dant’s physical proximity to the methamphetamine that supported a conclusion of constructive possession. Id. at 722. Rather, the arresting officer’s observation that the defen- dant exhibited signs of methamphetamine use while in the car—in conjunction with a discovery of methamphetamine in that car as well—was the missing link that allowed infer- ences “unavailable in Kulick, Fry, Keller, and Borden.” Id. at 721. Such reasoning was supported by Fry: “But a defen- dant’s ‘conduct indicating that he is under the influence of a controlled substance’ may ‘establish a link between a defen- dant’s proximity to contraband and a right to control that contraband.’ ” Chan, 349 Or App at 719 (quoting Fry, 191 Or App at 95 (brackets omitted)). Because defendant here exhibited no signs of recent drug use, his mere physical proximity alone does not estab- lish the missing link required to permit an inference that he constructively possessed the bag of crack cocaine, much less was in the act of delivering it or any other drugs to others. Such reasoning is consistent with Fry, where we held that “mere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive possession[.]” Fry, 191 Or App at 93. The trial court and dissent rely heavily on other items in defendant’s possession at the time of the stop to infer that he was involved in the use and/or selling of drugs and therefore was linked to the baggie of crack cocaine in the car: The scales in his pocket had powder cocaine on 274 State v. Burke them that witnesses indicated would not have been left by the rocks in the baggie. The state argues that possession of a scale, which defendant claims he picked up from atop the center console when he entered the car, and a large quan- tity of cash can be used to infer defendant’s connection to the bag of crack cocaine. The trial court acknowledged the discrepancy between the residue on the scales in defen- dant’s pocket and the cocaine in the bag, which would not leave such residue. In the past, the Oregon Supreme Court has indicated that there must be a strong link between the defendant and the drugs at issue, not just drugs in general, to establish constructive possession. See State v. Daniels, 348 Or 513, 522, 234 P3d 976 (2010) (finding that the MJOA should have been granted to the defendant who, when ques- tioned by police, admitted to selling methamphetamine about a month earlier and, subsequently, to regularly using it after police found packaging materials in the defendant’s home; no rational juror could have concluded beyond a rea- sonable doubt that defendant was in constructive possession of methamphetamine found in his girlfriend’s bag located in his bedroom, even though it was packaged in material iden- tical to other small plastic baggies found around the house). The $1,260 in defendant’s pocket was described by him as income from his work as a contractOr We have pre- viously required even more than an absence of an expla- nation for a large quantity of cash to infer that the money was connected to drug possession or dealing. See State v. Lopez-Medina, 143 Or App 195, 201, 923 P2d 1240 (1996) (holding that the defendant’s possession of a large quantity of cash did not permit an inference that the defendant was involved in drug dealing and therefore possessed the drugs at issue, even though the defendant did not attribute the cash found on him to earnings from employment or other innocent source, and even though drug dog strongly alerted to the cash). The state also argues that it is permissible to infer that defendant saw the bag of crack cocaine when he took the scale from the center console. However, such an inference is impermissible because it requires the stacking of inferences to the point of speculation. See Bivins, 191 Or App at 468 Cite as 353 Or App 267 (2026) 275 (“Likewise, evidence is insufficient if it requires the stack- ing of inferences to the point of speculation.”). The interior of the car, which defendant was unfamiliar with, was dark, the bag of crack cocaine was not visible from defendant’s position sitting in the driver’s seat, and defendant would not have had to move from his position to grab the scale from the center console. That defendant removed the scale from the top of the center console does not suggest that defendant was able to see a small item that had been “shoved” between the center console and the passenger seat. Additionally, the arresting officer—who had a vantage point that allowed him to see the firearm when defendant did not—was unable to locate the bag of crack cocaine until he conducted a second, more thorough, search of the car. Because of those facts, and without any evidence that defendant had moved to a posi- tion from which he could have seen the bag of crack cocaine, we find the state’s argument here unpersuasive. The state further argues that defendant’s identifi- cation of the crack cocaine supports an inference that he knew of the bag before the officer presented it to him. That a defendant can properly identify the contents of a clear plastic bag as a specific type of contraband does not support an inference of constructive possession. See Kulick, 314 Or App at 684 (the defendant’s proximity to a straw contain- ing methamphetamine and his proper identification of the straw’s purpose, based on his past methamphetamine use, was insufficient to support an inference beyond a reasonable doubt that defendant knowingly exercised control over, or had the right to control, the contraband). In the absence of evidence that permits an inference that defendant constructively possessed the bag of crack cocaine, we reverse defendant’s conviction for possession of cocaine. The state concedes error on the remaining assign- ments of errOr The record is clear that defendant was acquitted on Counts 1, 2, and 5, and the court should have reflected those determinations in the judgment, as opposed to dismissing those charge. See State v. Dikeos, 330 Or App 698, 722, 544 P3d 1020, rev den, 372 Or 718 (2024) (conclud- ing that “the trial court erred when it entered a judgment 276 State v. Burke of dismissal instead of an acquittal”). The record suggests that the court intended to impose 12 months of probation, but the judgment erroneously imposed 12 years. See ORS 137.010(4) (providing, in part, that “* * * the court may also impose and execute a sentence of probation on the defen- dant for a definite or indefinite period of not more than five years”). And it is well-settled that a court cannot impose fines or assessments that were not announced in open court, and here, the court stated on the record that it would not be imposing additional assessments. State v. Barr, 331 Or App 242, 244, 545 P3d 772, rev den, 372 Or 720 (2024). The pro- visions of the judgment concerning additional assessments should be removed. Conviction on Count 3 reversed; remanded for resentencing and entry of a corrected judgment; otherwise affirmed. TOOKEY, J., concurring in part and dissenting in part. According to the majority, the evidence does not establish the necessary link between defendant’s presence in his friend’s car and defendant’s right to control the bag of crack cocaine found in the car. Viewing the evidence in the light most favorable to the state, I reach a different con- clusion and would affirm on the first assignment of errOr Howeve , I agree with the majority’s analysis of the remain- ing assignments of error which require a remand for resen- tencing. I therefore concur in part and dissent in part. On review of the denial of a motion for judgment of acquittal (MJOA), we examine the evidence “in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995). Here, in November 2022, police stopped a Maserati that did not have a license plate or temporary permit. Defendant was arrested for driving with a suspended license. In the car, an officer found a handgun between the Cite as 353 Or App 267 (2026) 277 driver’s seat and the center console. When defendant was searched, the officer found “a scale with a white powder res- idue in his front right pants pocket” and “a large wad of cash in his right back pants pocket.” The amount of cash was $1,260. Defendant told the officer that he was driving the vehicle to a nearby Ramada Inn. In the car, the officer found “a plastic zip-lock style bag that was in between the center console and the passenger seat within arm’s reach of the driver.” There were several “rocks within the baggie.” The bag had been “shoved in between the seat and the center console.” The rocks tested positive for cocaine and weighed 19.2 grams, including the packaging. When the officer ques- tioned defendant about the cocaine, defendant said that his friend liked to smoke cocaine. Defendant said that “it was not his cocaine, that he only did powder and that his friend was the only one that smoked it.” When asked about the scale and the cash, defendant said that “the scale did not belong to him[,] but he had picked it up because it was * * * on the center console of the vehicle when he got in there,” and “he placed it in his pocket.” Defendant said that the money was payment that he had received from his employ- ment as a general contractor. At his bench trial, defendant moved for a judg- ment of acquittal on several charges, including the charge of unlawful possession of cocaine. Regarding that charge, defendant argued that the case was like State v. Kulick, 314 Or App 680, 497 P3d 789 (2021), in which we held that the evidence was insufficient to support a conviction for unlaw- ful possession of methamphetamine. The trial court granted several MJOAs, but it denied the MJOA on the charge of unlawful possession of cocaine. The court explained: “Yeah, I think it’s different from [Kulick] because he had the cash and the scale, and I understand they’re different kinds of cocaine, the powder versus the rock, but I don’t find that particularly compelling. I think that the scale and the cash are enough to make the inferences that he actu- ally was in possession of that cocaine rock. It was different from just having cocaine somewhere in the car. There were things that tied it to him.” 278 State v. Burke On appeal, defendant argues that there was insuf- ficient evidence to establish that he had constructive pos- session of the cocaine found in the car. The majority agrees with defendant, but I respectfully dissent. “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, 161 Or App 86, 89, 983 P2d 1055 (1999). “Evidence that con- traband is found in quarters owned or occupied by a defen- dant can be sufficient to allow the inference that he or she has a right to control that contraband.” Id. 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.” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003). The majority concludes that there was insufficient evidence of that link, but, in my view, the majority does not adequately take account of the significance of the evi- dence of defendant’s involvement in illegal drug dealing. In State v. Chan, 349 Or App 715, 722, 592 P3d 984 (2026), we emphasized that we look to the “totality of the evidence” to determine whether a factfinder could reasonably infer that a defendant was in constructive possession of contra- band found in the car that the defendant was driving. We pointed out that “[e]vidence suggesting that a defendant is engaged in illegal drug dealing permits an inference that the defendant constructively possessed drugs found nearby.” Id. Here, defendant possessed “a scale with a white powder residue” and a “large wad of cash,” and the police found a gun in the car and a zip-lock bag of crack cocaine, weighing 19.2 grams, which was a substantial quantity of the drug. In addition, the crack cocaine was discovered “within arm’s reach” of where defendant was sitting. Admittedly, in the instant case, the evidence of defendant’s involvement in illegal drug dealing is not as compelling as in Chan. Nevertheless, in denying the MJOA on the cocaine possession charge, the trial court focused on defendant’s possession of a large amount of cash and the scale. In my view, that evidence, as well as the discovery of a gun and a substantial quantity of crack cocaine, establish Cite as 353 Or App 267 (2026) 279 the necessary link between defendant’s presence where the drugs were found and his right to control those drugs. An inference can be reasonable even when it is not the only reasonable inference that can be drawn from the evidence. See State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004) (“the established facts may support multiple rea- sonable inferences”). Here, viewing the evidence in the light most favorable to the state, the presence in the Maserati of a scale, a gun, a large amount of cash, and a substantial quan- tity of crack cocaine establish the necessary link between defendant’s presence where the drugs were found and his right to control those drugs. Because there was sufficient evidence for the trial court to reasonably infer defendant’s constructive possession of the crack cocaine found in the car that he was driving, I would affirm on the first assignment of error. I agree with the majority’s analysis of the second, third, and fourth assignments of error, and those assign- ments of error require a remand for resentencing. I respectfully concur in part and dissent in part.