State v. Weller

501 P.2d 794 (1972)

STATE of Oregon, Respondent, v. Janet WELLER, Appellant.

Supreme Court of Oregon.

Argued and Submitted September 8, 1972.

Decided October 9, 1972.

Stephen S. Walker, Portland, argued the cause and filed a brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before O'CONNELL, C.J., and DENECKE, HOLMAN,[*] TONGUE, HOWELL and BRYSON, JJ.

DENECKE, Justice.

The defendant was convicted of the unlawful possession of marijuana. The Court of Appeals affirmed, State v. Weller, Or. App., 496 P.2d 735 (1972), and we granted the petition for review.

The only issue is whether there was sufficient evidence that the defendant had possession of the marijuana.

*795 There was evidence that the defendant lived in a bedroom on the second story of a residence. The defendant had no other relationship to the residence. Two other bedrooms, which were unoccupied, were on the second floor of the residence. There was also evidence that a man and another woman lived some place in the residence. In one of the unoccupied bedrooms on the second floor pots were found in which recently tended marijuana was growing. The defendant was convicted of the possession of this marijuana.

We said in State v. Oare, 249 Or. 597, 599, 439 P.2d 885, 886 (1968), "Evidence of the control or the right to control is necessary to constructive possession." No such evidence is present in this case.

Reversed.

[*] HOLMAN, J., did not participate in this decision.