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 resentencing 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 defendant “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 assignments of error and argues that the court erred by: (1) denying 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 possession 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 console. 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 circumstantial 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 possession of that cocaine rock.” The trial court did not explicitly 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 possession[.]” 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 conviction under a theory of constructive possession. For example, 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 methamphetamine that was discovered in a stopped car, with the defendant 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 methamphetamine. 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 methamphetamine 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 defendant’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 passenger 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 possession 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 support 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 methamphetamine at the time of the stop due to his profuse sweating. 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 defendant had said he could acquire drugs for others. Id. at 724. Those pieces of evidence—which suggested a direct connection 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 defendant’s physical proximity to the methamphetamine that
supported a conclusion of constructive possession. Id. at 722. Rather, the arresting officer’s observation that the defendant 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 inferences “unavailable in Kulick, Fry, Keller, and Borden.” Id. at 721. Such reasoning was supported by Fry: “But a defendant’s ‘conduct indicating that he is under the influence of a controlled substance’ may ‘establish a link between a defendant’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 establish 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 quantity 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 defendant’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 questioned 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 reasonable 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 identical 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 previously required even more than an absence of an explanation 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 stacking 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 position 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 identification 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 containing 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 assignments 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) (concluding 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 defendant 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 provisions 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 conclusion and would affirm on the first assignment of errOr
Howeve , I agree with the majority’s analysis of the remaining assignments of error which require a remand for resentencing. 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 residue 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 questioned 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 employment as a general contractor.
At his bench trial, defendant moved for a judgment 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 unlawful 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 actually 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 insufficient evidence to establish that he had constructive possession 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 contraband is found in quarters owned or occupied by a defendant 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 evidence 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 contraband 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 reasonable 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 quantity 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 assignments of error require a remand for resentencing.
I respectfully concur in part and dissent in part.