State v. Sherman
Case # A153169
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A153169.pdf
Police Officers conducting a month-long surveillance of an apartment for suspected illegal drug activity saw Defendant Sherman at least six times in the early morning and late evening hours. Although the apartment was rented by someone else, Sherman was the account holder for the apartment’s electricity. On the day Officers were going to execute a warrant to search the apartment and a rental car, they saw Sherman drive away in the rental car with two other people, including the woman who rented the apartment. Officers followed Sherman and eventually pulled him over and arrested him. As he was being arrested, Sherman yelled at his lady passenger to “keep her mouth shut” and that they had been “set up.” A female deputy searched the lady passenger and found 5.67 grams of cocaine hidden in her vagina. A search of the apartment revealed 5.65 grams of crack cocaine in the pocket of a pair of men’s pants as well as materials used for manufacturing and packaging crack cocaine. Sherman was charged with and ultimately convicted of unlawful manufacture, delivery, and possession of more than 10 grams of cocaine. He appeals those convictions, contending that no reasonable factfinder could conclude that he constructively possessed the 5.67 grams of cocaine found in his passenger’s vagina.
Sherman argues that, because a person’s vagina is a unique and personal space, the State should be required to show that he had a right to control the cocaine before it was hidden in the lady’s body. The State counters that the circumstantial evidence is sufficient to establish that Sherman had a right to control the cocaine found in the lady’s vagina.
The Court of Appeals agrees with the State. The Court notes that the State presented evidence indicating that Sherman and the lady were participating in a joint drug-dealing enterprise. It also notes that a witness testified that men will sometimes insulate themselves from risk by having ladies engage in the actual drug transaction while the man is merely present to receive the proceeds. Finally, Sherman’s shouting at the lady to “keep [her] mouth shut” and that they had been “set up” suggest that he knew she possessed the drugs. Also relevant are the facts that Sherman was living at the apartment (he had personal documents, paperwork, and clothes there), which turned out to be a drug dealing hub. Finally, Sherman’s evasive driving after he noticed the Officers following him do not help his argument. Based on these reasons, the Court of Appeals concludes that Sherman had a joint right to control the cocaine hidden in his roommate’s vagina. Accordingly, his convictions are affirmed.